In re AC

573 A.2d 1235

In re A.C., Appellant.

No. 87-609.

District of Columbia Court of Appeals.

Argued En Banc September 22, 1988.

Decided April 26, 1990.

Robert E. Sylvester, Washington, D.C., and Lynn M. Paltrow, with whom Dawn Johnsen, Janet Benshoof, New York City, Rachael N. Pine, Leslie A. Harris, Arthur B. Spitzer, and Elizabeth Symonds, Washington, D.C., were on the brief, for appellant A.C.

Barbara F. Mishkin, with whom Steven J. Routh and Katie G. Lewis, Washington, D.C., were on the brief, for appellee L.M.C.

Vincent C. Burke, III, with whom Jack M.H. Frazier, Washington, D.C., was on the brief, for appellee George Washington University.

Carter G. Phillips, Washington, D.C., with whom Elizabeth H. Esty, Mark E. Haddad, Boston, Mass., David Orentlicher, Washington, D.C., Kirk B. Johnson, Edward B. Hirshfeld, Chicago, Ill., Ann E. Allen, John Lewis Smith, III and James E. Cervenak, Washington, D.C., were on the brief, for the American Medical Ass'n, the American College of Obstetricians and Gynecologists, and the Medical Soc. of the Dist. of Columbia, as amici curiae.

Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., filed a statement in lieu of brief, for appellee Dist. of Columbia.

Sarah E. Burns, Washington, D.C., Alison C. Wetherfield, Marion B. Stillson, and Dale Schroedel filed a brief, for the NOW Legal Defense and Educ. Fund, et al., as amici curiae.

Lawrence J. Nelson and H. Westley Clark filed a brief, for the American Soc. of Law and Medicine, et al., as amici curiae.

Loren Kieve, Washington, D.C., John H. Hall, Mary Sue Henifin, Walter J. Walsh, James B. Henly, New York City, and Nadine Taub, Newark, N.J., filed a brief, for the American Public Health Ass'n as amicus curiae.

James M. Thunder, Cleveland, Ohio, Clarke D. Forsythe, Chicago, Ill., Ann-Louise Lohr, and Edward R. Grant filed a brief, for the Americans United for Life Legal Defense Fund as amicus curiae.

Mark E. Chopko and Helen M. Alvare, Philadelphia, Pa., filed a brief, for the United States Catholic Conference as amicus curiae.

Giles R. Scofield, III, and Nancy D. Polikoff filed a memorandum, for Concern for Dying as amicus curiae.

Fenella Rouse, Elena Cohen, New York City, M. Rose Gasner, and Mark D. Schneider, Washington, D.C., filed a memorandum, for the Soc. for the Right to Die as amicus curiae.

Before ROGERS, Chief Judge,^* NEWMAN, FERREN, BELSON, TERRY, STEADMAN and SCHWELB, Associate Judges, and MACK, Senior Judge.^**

ON HEARING EN BANC

TERRY, Associate Judge:

This case comes before the court for the second time. In In re A.C., 533 A.2d 611 (D.C.1987), a three-judge motions division denied a motion to stay an order of the trial court which had authorized a hospital to perform a caesarean section on a dying woman in an effort to save the life of her unborn child. The operation was performed, but both the mother and the child died. A few months later, the court ordered the case heard en banc and vacated the opinion of the motions division. In re A.C., 539 A.2d 203 (D.C.1988). Although the motions division recognized that, as a practical matter, it "decided the entire matter when it denied the stay," 533 A.2d at 613, the en banc court has nevertheless heard the full case on the merits.¹

We are confronted here with two profoundly difficult and complex issues. First, we must determine who has the right to decide the course of medical treatment for a patient who, although near death, is pregnant with a viable fetus. Second, we must establish how that decision should be made if the patient cannot make it for herself — more specifically, how a court should proceed when faced with a pregnant patient, in extremis, who is apparently incapable of making an informed decision regarding medical care for herself and her fetus. We hold that in virtually all cases the question of what is to be done is to be decided by the patient — the pregnant woman — on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment. Because the trial court did not follow that procedure, we vacate its order and remand the case for further proceedings.²

I

This case came before the trial court when George Washington University Hospital petitioned the emergency judge in chambers for declaratory relief as to how it should treat its patient, A.C., who was close to death from cancer and was twenty-six and one-half weeks pregnant with a viable fetus. After a hearing lasting approximately three hours, which was held at the hospital (though not in A.C.'s room), the court ordered that a caesarean section be performed on A.C. to deliver the fetus. Counsel for A.C. immediately sought a stay in this court, which was unanimously denied by a hastily assembled division of three judges. In re A.C., 533 A.2d 611 (D.C.1987). The caesarean was performed, and a baby girl, L.M.C., was delivered. Tragically, the child died within two and one-half hours, and the mother died two days later.

Counsel for A.C. now maintain that A.C. was competent and that she made an informed choice not to have the caesarean performed. Given this view of the facts, they argue that it was error for the trial court to weigh the state's interest in preserving the potential life of a viable fetus against A.C.'s interest in having her decision respected. They argue further that, even if the substituted judgment procedure had been followed, the evidence would necessarily show that A.C. would not have wanted the caesarean section. Under either analysis, according to these arguments, the trial court erred in subordinating A.C.'s right to bodily integrity in favor of the state's interest in potential life. Counsel for the hospital and for L.M.C. contend, on the other hand, that A.C. was incompetent to make her own medical decisions and that, under the substituted judgment procedure, the evidence clearly established that A.C. would have consented to the caesarean. In the alternative, counsel for L.M.C. argues that even if L.M.C.'s interests and those of the state were in conflict with A.C.'s wishes, it was proper for the trial court to balance their interests and resolve the conflict in favor of surgical intervention.

We do not accept any of these arguments because the evidence, realistically viewed, does not support them.

II

A.C. was first diagnosed as suffering from cancer at the age of thirteen. In the ensuing years she underwent major surgery several times, together with multiple radiation treatments and chemotherapy. A.C. married when she was twenty-seven, during a period of remission, and soon thereafter she became pregnant. She was excited about her pregnancy and very much wanted the child. Because of her medical history, she was referred in her fifteenth week of pregnancy to the high-risk pregnancy clinic at George Washington University Hospital.

On Tuesday, June 9, 1987, when A.C. was approximately twenty-five weeks pregnant, she went to the hospital for a scheduled check-up. Because she was experiencing pain in her back and shortness of breath, an x-ray was taken, revealing an apparently inoperable tumor which nearly filled her right lung. On Thursday, June 11, A.C. was admitted to the hospital as a patient. By Friday her condition had temporarily improved, and when asked if she really wanted to have her baby, she replied that she did.

Over the weekend A.C.'s condition worsened considerably. Accordingly, on Monday, June 15, members of the medical staff treating A.C. assembled, along with her family, in A.C.'s room. The doctors then informed her that her illness was terminal, and A.C. agreed to palliative treatment designed to extend her life until at least her twenty-eighth week of pregnancy. The "potential outcome for the fetus," according to the doctors, would be much better at twenty-eight weeks than at twenty-six weeks if it were necessary to "intervene." A.C. knew that the palliative treatment she had chosen presented some increased risk to the fetus, but she opted for this course both to prolong her life for at least another two weeks and to maintain her own comfort. When asked if she still wanted to have the baby, A.C. was somewhat equivocal, saying "something to the effect of `I don't know, I think so.'" As the day moved toward evening, A.C.'s condition grew still worse, and at about 7:00 or 8:00 p.m. she consented to intubation to facilitate her breathing.

The next morning, June 16, the trial court convened a hearing at the hospital in response to the hospital's request for a declaratory judgment. The court appointed counsel for both A.C. and the fetus, and the District of Columbia was permitted to intervene for the fetus as parens patriae. The court heard testimony on the facts as we have summarized them, and further testimony that at twenty-six and a half weeks the fetus was viable, i.e., capable of sustained life outside of the mother, given artificial aid. A neonatologist, Dr. Maureen Edwards, testified that the chances of survival for a twenty-six-week fetus delivered at the hospital might be as high as eighty percent, but that this particular fetus, because of the mother's medical history, had only a fifty to sixty percent chance of survival.³ Dr. Edwards estimated that the risk of substantial impairment for the fetus, if it were delivered promptly, would be less than twenty percent. However, she noted that the fetus' condition was worsening appreciably at a rapid rate, and another doctor — Dr. Alan Weingold, an obstetrician who was one of A.C.'s treating physicians — stated that any delay in delivering the child by caesarean section lessened its chances of survival.

Regarding A.C.'s ability to respond to questioning and her prognosis, Dr. Louis Hamner, another treating obstetrician, testified that A.C. would probably die...